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Sunday, 27 May 2012

This Kat likes her moral rights cases (for instance see her earlier KatPost here). So she was very interested to hear that Recorder Douglas Campbell, sitting in the Patents County Court, England and Wales, had given judgment in a moral rights case on 18 May 2012 in Emma Delves-Broughton v House of Harlot. Every day since then, she has been checking the usual suspects for a transcript of the decision -- but currently the case remains as unreported.

This Kat has however ascertained the following so far:
Ms Delves-Broughton is a professional photographer (her website bears the legend: "WARNING: This site contains images of partial nudity up to Art Nude"). She took a photograph of an unnamed female model in a forest wearing a garment supplied by theHouse of Harlot. ("CLICK TO ENTER HOUSE OF HARLOT AND TORTURE GARDEN CLOTHING FOR LATEX RUBBER FETISH FASHION"). Ms Delves-Broughton gave a copy of the image to the model with a letter which only granted the model permission to use the image on her own website for personal use. If anyone else wanted to use it, the model should let Ms Delves-Broughton know. The model however presented the image to the House of Harlot, which then proceeded to modify the image by reversing it and removing the forest background [says the IPKat, it's just as well they didn't remove anything else ...]. It then put this second image on its website.

When Ms Delves-Broughton complained, the House of Harlot promptly took down the second image. Ms Delves-Broughton then commenced proceedings for (a) copyright infringement and (b) derogatory treatment of her work. The House of Harlot responded by arguing that (a) it had a licence to use image by virtue of subsequent oral discussions between the model and Ms Delves-Broughton and (b) the changes it made to the image did not constitute derogatory treatment.

Douglas Campbell decided in favour of Ms Delves-Broughton on both claims.
In respect of the claim of copyright infringement, he found that it was inherently implausible that Ms Delves-Broughton and the model had a discussion during the shoot to the effect that the House of Harlot was granted a licence to use the image. He was critical of the credibility of the model, particularly as her oral evidence (that a licence to the House of Harlot was granted) went further than her witness statement (which reiterated the understanding outlined in Ms Delves-Broughton’s letter outlining use of the image). He preferred the evidence of Ms Delves-Broughton and found that she had granted no such licence to the House of Harlot.

On the issue of damages for infringement, the fact that the image had appeared on eight pages of the website did not mean that there were eight uses for damages purpose. the judge stated that there had only been a single use: on the website. He followed the guidelines set out in the National Union of Journalists and awarded £675 for the infringement claim.

In respect of the claim of derogatory treatment of the work, Douglas Campbell noted that considerable time and effort had done into the composition of the image and that it had been important for the forest to appear for artistic reasons. Accordingly, he found that the changes amounted to distortion, but not mutilation, and were not prejudicial to Ms Delves-Broughton’s honour or reputation. Nonetheless, there was a distortion and therefore derogatory treatment of the work.

On the issue of damages for derogatory treatment, taking everything into account, the court awarded £50 damages. Normally the primary remedy in such cases was an injunction, but that remedy was inappropriate in the present proceedings as the House of Harlot had already removed the photograph from its website.

The IPKat and Merpel ask: has anyone been able to get their paws on a judgment or statement of reasons?

4 comments:

Andy J
said...

I can't help with a copy of the judgment, but it is interesting to note that both parties appeared in person, making this something of a fore-taste of the Small Claims route proposed for the soon-to-be renamed PCC.

Based on the Kat's description, this decision does appear to be inconsistent with the established view that "derogatory treatment" requires the rights holder to show both a distortion/mutilation and prejudice to honour or reputation (see Pasterfield and Confetti Records). This approach is also mandated by the Berne Convention.

It would be interesting to see the reasoning as to why a distortion alone was sufficient.

The transcript has now been posted on Westlaw - file://bbcfs2081/UserData$/hayesl08/Downloads/LWT_2012_05_27721687%20(1).pdf (as it's a pdf of a Lawtel summary it may not open via link, but searching on Westlaw or Lawtel will bring it up).

I'd be interested to know thoughts on this case, as the reasoning that distortion is equal to derogatory treatment is very different to that in previous cases, where distortion had to have prejudiced the author's reputation as an artist.

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